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2010 DIGILAW 138 (PNJ)

Krishan Lal v. Krishan

2010-01-07

VINOD K.SHARMA

body2010
Judgment VINOD K.SHARMA, J. 1. This application under Sec.151 of the Code of Civil procedure has been moved for dispensing with the filing of certified copy of judgment and decree dated 8.6.2007 passed by the learned additional Civil Judge (Senior Division), Narwana. 2. For the reasons stated in the application, CM is allowed. The applicants are exempted from filing the certified copy of judgment and decree dated 8.6.2007 and are permitted to place on record the typed copy thereof. CM No.4785-C of 2009 3. There is no provision under the Code of Civil Procedure for taking on record a document which is neither relied upon nor proved in evidence in accordance with law. CM is dismissed, as not competent. 4. For the reasons stated in the application, CM is allowed and the delay in making good the deficiency in court fee is condoned. CM No.4787-C of 2009 5. For the reasons stated in the application, CM is allowed and the delay of 25 days in refiling the appeal is condoned. RSA No.1595 of 2009 6. This regular second appeal is directed against the judgment and decree dated 15.10.2008 passed by the learned Courts below, vide which the suit filed by the plaintiff/appellants for possession, stands dismissed. 7. The plaintiff/appellants brought a suit seeking decree of possession of the shop being owner of the property in dispute. The case of the plaintiff/appellants was, that by way of notice under Sec.106 of the Transfer of Property Act, the tenancy of the respondent was terminated and he was in unauthorised possession of the property in dispute, therefore, the suit for possession. The plaintiff/appellants also sought recovery of arrears of rent. 8. The suit was filed on 6.7.2001. During the pendency of the suit, a notification was issued on 1.8.2001 extending the area of municipal limits of Uchana, District Jind, and the provisions of the haryana Urban (Control of Rent and Eviction) Act were made applicable to the property in dispute. 9. The learned trial Court came to the conclusion, that in view of the provisions of the Rent Act having been made applicable, civil Court jurisdiction to pass a decree of possession stood ousted, and dismissed the suit. Appeal filed by the plaintiff/appellants also failed. 10. 9. The learned trial Court came to the conclusion, that in view of the provisions of the Rent Act having been made applicable, civil Court jurisdiction to pass a decree of possession stood ousted, and dismissed the suit. Appeal filed by the plaintiff/appellants also failed. 10. The learned counsel appearing on behalf of the appellants contends, that this appeal raises the following substantial question of law: - "whether the notification issued by the State Government could have retrospective effect, to cover the suit filed prior to coming into force of the rent Act in the area?" 11. In support of the substantial question of law, the learned counsel for the appellants vehemently contends, that as per the provisions of the General Clauses Act, a notification would be prospective in nature unless made retrospective by way of specific order. 12. The contention of the learned counsel for the appellants is, that as the notification was not retrospective, therefore, it had no application to the pending suit. In support of this contention, the learned counsel for the appellants placed reliance on the judgment of the Honble Supreme court in Mansoor Khan Vs. Motiram Harebhan Kharat, 2002 (1) RCR (Rent) 605. 13. The learned counsel for the respondent, however, contends that the substantial question of law raised by the learned counsel for the appellants stands answered by this Court in J. U. Katyal and another Vs. Krishan Kapur and others, 2005 (1) PLR 558, wherein the question, whether the notification issued during the pendency of the suit, would take away the jurisdiction of the civil Court, regarding eviction of the tenants, stands answered in favour of the tenant. 14. This Court considered the judgment of the Honble Supreme court in Mansoor Khan Vs. Motiram Harebhan Kharat (supra) relied upon by the appellants. The relevant part of the judgment of this Court reads as under: - "17. So far as Mansoor Khan Vs. Motiram Harebhan Kharat, A. I. R.2002 s. C.2396 (supra), relied upon by the learned counsel for the plaintiff appellants, is concerned, in my opinion, the law laid down in the said authority also would not apply to the facts of the present case. So far as Mansoor Khan Vs. Motiram Harebhan Kharat, A. I. R.2002 s. C.2396 (supra), relied upon by the learned counsel for the plaintiff appellants, is concerned, in my opinion, the law laid down in the said authority also would not apply to the facts of the present case. In the reported case after perusing the provisions of Central Provinces and Berar Letting of Houses and Rent Control Order, 1949, it was held by the Honble Supreme Court that the notification by virtue of which Chapters II and IV of the said Order were made applicable to all Municipalities in the Central Provinces and Berar and the states integrated with the Central Provinces and Berar with effect from the date of the notification, would not affect the validity of the proceedings initiated before the date on which the said order became applicable. It was further held that clause 13 of the said Order did not restrain the Court from exercising its powers to pass a decree for eviction and Clause 13 only provided to impose a restriction on the right of a landlord to initiate the proceedings for eviction. It was further held that the said Control Order was not retrospective in operation and it would not affect the validity of the previously instituted proceedings nor did it take away the power of the Court to pass a decree for eviction in the pending suit. The Honble Supreme Court in the said authority was considering the provisions of Clause 13 of the Control Order, relevant part whereof reads as under: - "13 (1) No landlord shall, except with the previous written permission of the Controller: - (a) give notice to a tenant determining the lease or determine the lease if the lease is expressed to be determinable at his option; or (b) where the lease is determinable by efflux of the time limited thereby, require the tenant to vacate the house by process of law or otherwise if the tenant is willing to continue the lease on the same terms and conditions. (2) A Landlord who seeks to obtain permission under sub-clause (1)shall apply in writing to the Controller in that behalf: provided that where the tenancy is for a specified period agreed upon between the landlord and the tenant, no application under items (vi) and (vii) or sub-clause (3) shall be entertained by the Controller before expiry of such period. (3) If after hearing the parties the Controller is satisfied. . . " [note: Below sub-clause (3) are enumerated nine grounds on availability whereof the Controller may grant the landlord permission to give notice to determine the lease as required to sub-clause (1)]" In my opinion, the law laid down by the Honble Supreme Court of India in this authority would have no application to the facts of the present case. In the present case, we are concerned with the provisions of Sec.13 of the Haryana Act. The opening paragraph of Sec.13 of the said Act reads as under: - "13. Eviction of tenants: - (1) A tenant in possession of a building or rented land shall not be evicted therefrom except in accordance with the provisions of this Section." 18. The provisions of the various Rent Acts, including Punjab Act and the Haryana Act were considered by the honble Supreme Court and by the Full Bench of this Court in the case referred to above and it was held that no decree for possession by way of ejectment could be passed after the coming into force of the aforesaid Act and even if any such decree is passed, it was not executable and as such no useful purpose will be served in passing a decree for possession if it could not be executed. In this view of the matter, in my opinion, the plaintiff appellants cannot take any benefit of the law laid down by the Honble Supreme Court in mansoor Khan Vs. Motiram Harebhan Kharats case (supra ).19. So far as the order dated 11.3.2003 passed by a Single Judge of this court in Civil Revision No.751 of 2002 (supra), relied upon by the learned counsel for the appellants, is concerned, in my opinion, the said order is per incurium, as the binding precedent of the Honble Full Bench of this Court was not brought to the notice of the Court deciding that case.20. In Jagpat Rai V/s. Gurdial Singh, (1991-2)100 Punjab Law Reporter 23, the landlord had filed a suit for possession by way of ejectment from a shop situated in Assandh, District Karnal. The suit for possession by way of ejectment was decreed by the Trial Court and the decree was affirmed by the lower Appellate Court. However, during the pendency of the Regular Second Appeal in this Court, a notification issued by the State of Haryana was produced by way of additional evidence to show that Assandh had been declared to be a Notified area Committee under the Haryana Municipal Act and considering that the shop was situated within the Notified Area Committee, it was found that the provisions of the Haryana Act would apply and the tenant can be ejected only on any of the grounds available under the said Act. Reliance was placed on the law laid down by the Honble supreme Court in the case of Laxmi Narayan Cuin and others V/s. Niranjan modak (supra ). Similar view was also taken by this Court recently in Ram Narain and others V/s. Ram Lal and others, (2004-1) 136 P. L. R.634:r. S. a. No.1683 of 1982, decided on 4.9.2003 by Hemant Gupta J. relating to Kharkhoda town. The law laid down by this Court in these authorities would fully apply to the facts of the present case. " 15. The substantial question of law is answered against the appellants. No merit. Dismissed.